Whether I’m searching for cheap shampoo, an expensive computer, or a spot-on Christmas present, I go straight to Amazon to compare my options and read the reviews. The more reviews I see, the more likely I am to trust the stars. Sure, some business owners may skew ratings by adding positive reviews, but I figure they can do little to overshadow negative opinions.
Unfortunately, I’m beginning to see an irritating trend that compromises the value of product reviews (and my ability to find top notch gifts). Companies, especially unfamiliar, foreign-based ones are unethically pumping up their search visibility by offering individuals free or discounted products in exchange for written reviews on popular marketplace sites such as Amazon. Unsurprisingly, those reviews are overwhelmingly positive. Since the number of reviews contributes to a product’s result rank, businesses can significantly increase both rankings and ratings by giving away free products in exchange for stars. This disingenuous practice misrepresents feedback from traditional reviewers who consider both quality and bang for their buck. But until the government deems such marketing practices deceitful by outlawing them, businesses can treat critiques of their approach as a matter of opinion. Seeing as the Federal Trade Commission is only beginning to regulate this evolving form of promotion and Amazon struggles to cope with biased feedback, forthcoming change is unlikely.
For years, the Federal Trade Commission has dedicated resources to protecting buyers from unethical and deceptive advertising tactics. The FTC Act prohibits businesses from misrepresenting or omitting information in a way that can mislead potential consumers. The Act states that the misrepresentation should be material enough to warrant action, “if it is likely to affect consumers’ choices or conduct regarding an advertised product or the advertising for the product.” By this definition, promotion campaigns that induce biased reviews cross the line. But the FTC Act has only recently addressed the growing trend of trading products for reviews. When it comes to reviews – especially ones associated with unfamiliar brands – the law has not kept up with evolving marketing trends.
The FTC Act was developed to single out and punish businesses, advertising agencies and catalog marketers who mislead the public, but there is insufficient precedent to legally classify reviewers on third-party websites as any of these entities. It is unclear whether reviewers fall under the umbrella of advertisers when they publish biased reviews. Nor is it clear how much responsibility businesses should take for reviewers who do not reveal their connection with businesses by failing to mention information about free products.
Concerns about the legality of promotional reviews have led the FTC to add a 2015 Endorsement Guide Q&A to its Act. Echoing the FTC’s general theme of transparency, the guide instructs businesses who offer perks to disclose their offers because: “Knowing that reviewers got the product they reviewed for free would probably affect the weight [the] customers give to the reviews, even if you didn’t intend for that to happen … [the] customers have the right to know which reviewers were given products for free.” Considering Amazon sellers offering samples cannot disclose information about perks in product descriptions, it is safe to say a degree of deception by omission is taking place.
What isn’t clear is how much blame businesses should take for such omissions. Marketplace platforms on Amazon don’t set aside a place for information about perks, instead asking reviewers to disclose such information within their comments. The FTC Guide – which does not have the force of law – recommends that bloggers who review free products mention benefits using clear language that stands out within their comments. But on Amazon, disclosures often get lost in a sea of reviews, especially in cases where businesses give away hundreds of samples. Even though companies often contact bloggers in their search for Amazon reviews, these reviewers do not adopt the role of bloggers on Amazon, and they do not have the same opportunities to make disclosures stand out. It is hard to blame bloggers for this FTC and Amazon oversight. At the moment, buyers bear the responsibility for seeking out biased reviews and must hope that, at the very least, commenters are honest about receiving free products when they post.
Since Amazon filters have not rid the site of biased reviews, you may be comically surprised by the high rankings and bulk reviews of unknown brands. In a recent Amazon search for the keyword ‘shampoo’ I found myself on a landing page where an ArtNaturals shampoo topped the list. Although I was not familiar with the brand, it received 4.5 out of 5 stars based on 4,407 reviews – and it had the blue #1 Best Seller Ribbon! I was intrigued. It showed up ahead of obvious results, such as TRESemmé and Pantene, which paled in comparison with a scant 519 ratings. After glancing at a few reviews, it became clear that many of the ratings were not written by typical consumers. Of the 10 most recent reviews, eight mentioned the shampoo was free or purchased at a discounted rate. None of those reviewers gave the product fewer than four stars. Quickly irritated, I looked at what unsatisfied commenters had to say – they were also aggravated. “I am so upset at both this product and the other reviews for this product, that I’m questioning the entire Amazon review process. I paid full price for this shampoo … and the product is awful,” wrote Lillian A.
Aware that misleading reviews mar their reputation, but unwilling to eliminate third-party review systems, Amazon took steps to minimize the most biased of reviews. It went after companies and affiliates who did not just manipulate reviews, they outright purchased them. The marketplace giant filed two lawsuits in 2015, one against businesses and one against fraudulent reviewers.
In its first lawsuit, Amazon filed charges against several websites for selling fake reviews, later claiming that some of those sites were forced to shut down. In the second, the company sued 1,000 individuals who used the service exchange platform Fiverr.com to sell five-star reviews for $5 each. This was the first time Amazon went after reviewers themselves, taking a bottom-up approach not yet standardized by the FTC. According to Amazon’s complaint: “An unhealthy ecosystem developed outside of Amazon to supply reviews in exchange for payment … This action is then next step in a long-term effort to ensure these providers of fraudulent reviews do not offer their illicit services…”
Amazon and the FTC have a long way to go before they can curb misleading review solicitation. That being said, not everyone agrees that exchanging products for reviews is something they should be worrying about in the first place. Some have suggested that small businesses need a place to start, and establishing a consumer base by incentivizing reviews is an effective, commonsense way of building brand visibility.
Numerous bloggers contacted by businesses in need of Amazon reviews stressed that free samples did not play into their feedback. In a 2015 Amazon discussion thread about free samples, one user wrote: “There’s a lot of fakers out there but it runs us real reviewers good name through the mud. I have received item discount [sic] and free … And yet according to this post I’ve been bribed? The seller offers me the discount as an incentive to write the review so he or she can see how their product is performing because most folks who buy stuff online do not take the time to come back and review the item.” Another agreed, adding that, “the impulse to be ‘nice’ is stronger” when products are free, but she was conscious of the pressure, and ultimately submitted honest reviews.
Not everyone will agree that offering free products results in overwhelmingly biased reviews, or that the process is unethical on the part of businesses, but most shoppers will agree that it misleads unsuspecting buyers. So is there a quick fix on the consumer end? Aside from digging deeper before clicking on the ‘Proceed to checkout’ button, not really. But there are interesting developments that may evolve into promising tools for the future. For example, Fakespot.com, a free, no-frills website launched in 2015 claims that it can detect the authenticity of Amazon reviews by looking for patterns in the comment sections. Assessments of its effectiveness have been mixed, but the prospect of new algorithms that can detect bias (and apply to sites beyond Amazon) are worth researching. If you were wondering, the website gave ArtNaturals a 55.2 percent ‘low quality review’ rating. Then again, the shampoo producer had long lost me at, “I got this product free in exchange for my honest and unbiased review.”
Paulina Haselhorst was a writer and editor for AnswersMedia and the director of content for Scholarships.com. She received her MA in history from Loyola University Chicago and a BA from the University of Illinois at Urbana-Champaign. You can contact Paulina at PaulinaHaselhorst@gmail.com.
On March 31 this year, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking (NPRM) on broadband privacy regulations. This could seem a little tardy, as we’ve been using the internet at home and work for more than a quarter of a century, starting with those tuneful dial-up modems. If you remember them, can you get the unique rhythm of a successful connection out of your head? Back in those days the connections were a telecoms matter. Your telecoms provider was and continues to be regulated for telecommunications activity and the privacy requirements that surround it. Broadband, however, is a different matter. As broadband and fiber optic services proliferated, they did not fall neatly under the telecoms banner, and no explicit privacy rules have previously been laid down.
The United States’ legislative approach to privacy has been discussed previously within these archives. As an external observer, the adoption of the NPRM just a few weeks ago is yet another example of a legislative style which addresses privacy concerns around each technology as it arises, rather than applying an automatic standard of privacy and then adapting to suit. Regardless, the NPRM adopted by the FCC seems to be a very sensible and comprehensive proposal. It addresses the questions of whether consumers know what data collection they are agreeing to when they sign up for internet services. It defines three core principles of choice: transparency and security in the transmission, and storage of data. It specifically addresses permissions and protection of data handled by your broadband provider; although, government surveillance is outside the scope of the notice, which is another story altogether.
Do consumers really give informed consent?
The Fourth Utility and Net Neutrality
There is a worldwide trend to define broadband as the fourth utility. In the U.K. there has been five years of sustained campaigning by the Federation of Small Businesses, and broadband service information is increasingly a factor in real estate decisions for the majority of homebuyers. In New Zealand on April 14 this year, Communications Minister Amy Adams announced that the future regulation of copper and fiber services would be similar to the way electricity lines were regulated. In rural France, my own family recently became one of the first homes to be connected to the village fiber optic supply.
This paradigm shift gives credence to the FCC’s position as the correct jurisdiction for broadband legislation. After all, they are responsible for regulating common carriers in telecommunications, and the internet seems to be moving toward the same market model. The FCC’s 2015 Open Internet rules established the principle of net neutrality and aimed to “protect and maintain open, uninhibited access to legal online content without broadband internet access providers being allowed to block, impair, or establish fast/slow lanes to lawful content.” However, appropriate jurisdiction has divided the House and seems a long way from being satisfactorily resolved.
FTC vs. FCC
At the heart of this division lies the conflict between the roles of the two federal commissions. The Federal Trade Commission is the leading enforcer of privacy and data security, so it could be argued that the whole matter of broadband privacy regulations should be set squarely at their door. Certainly, the FTC has a history of effective consumer protection in the broadband space and successful actions against internet service providers. As internet and telecommunications services began to converge, the concept of a fourth utility was effectively accepted with the Open Internet rules, defining broadband as a ‘common carrier.’
Shifting the jurisdiction over to the FCC, however, removed the FTC’s ability to act over unfair broadband pricing. The Open Internet rules prevent providers from employing ‘blocking, throttling, or paid prioritization’ measures, however this amounts to price control. As pricing is the sole responsibility of the FTC, the ball continues to bounce from one side of the court to the other. Although the two commissions have an established memorandum of understanding for cooperation, this does not seem to extend to rationalization of the legislation surrounding broadband internet access providers.
The No Rate Regulation debate
The Open Internet rules have been interpreted as the FCC’s attempt to micro-manage the internet. Its teeth are effectively drawn thanks to a third piece of legislation, the No Rate Regulation of Broadband Internet Access Act (H.R. 2666). This codifies into law the original promises that the FCC would refrain from regulating rates. The bill was passed by the Energy and Commerce Committee on March 15 this year. In the debate, Commissioners criticized the FCC’s adoption of responsibility for all aspects of the internet as leaving American consumers exposed to higher connection bills and lower competition.
H.R. 2666 has come in for considerable criticism, notably from the Center for Democracy and Technology (CDT), which asserts that the legislation would undermine public interest because in closing down rate regulation, the bill compromises the very consumer privacy concerns that started this whole debate.
Resolving a fractured approach
There is a raft of detail in the different pieces of legislation that have been developed over the past year or more on this topic. It’s clear that there is a problem, and that many well-meaning, competent people have developed comprehensive measures to deliver a future-proofed solution. The overarching problem is the conflict between the present situation and future vision.
Right now broadband internet is in its relative infancy. The delivery of infrastructure has fallen to independent commercial providers who need to reap the benefit of their investments. The market is competitive and occasionally bloodthirsty, and coverage is nowhere close to complete. The president reminded us, in his speech at South by Southwest, that 50 percent of Hispanic citizens and 46 percent of African American citizens do not have internet access. We have similar issues in the U.K.: I have a contract for 200Mbps fiber optic supply. I receive 60Mbps and a large credit each month because the required $15,000 investment to update the local relay will only be made when enough households are signed up. Two miles away in the countryside, friends struggle to reach 3Mbps on their outdated lines. If there is no profit in a service, it will not be supplied. Broadband is resolutely commercial right now, and consumers should enjoy the protection of the Federal Trade Commission.
The Open Internet rules and the Notice on proposed broadband privacy regulations, however, look to a future where internet access is as vital to life as water, power and telecoms, and provided to all. They lay down the ground rules for a fourth utility, prudent preparation for the inevitable shift in the broadband provision landscape. But has the Federal Communications Commission jumped the gun? The obvious course of action would seem to be joint jurisdiction over transitional arrangements, which avoid conflict and omission. Perhaps the policymakers will eventually reach this conclusion, too.
Kate Baucherel is a director of UK-based software startup Ambix, a qualified accountant with 25 years’ experience across a variety of industries, and an experienced digital marketer. She is the author of Poles Apart: Challenges for business in the digital age, and works with businesses of all sizes to help them use the internet effectively to achieve their goals. She has two young children, and lives in the north of England.
The widespread usage of social media and apps like Periscope and Meerkat, (evolved from earlier video-sharing technologies such as Vine and of course YouTube) has turned ordinary citizens into often unwitting journalists. Long before news crews can get to the scene of a crime, traffic accident or hostage situation, anyone with a smartphone can capture graphic images of a potentially violent or personal situation, and broadcast video live to thousands, even millions. The ethical ramifications of using eyewitness footage are complicated for journalistic and legal purposes in terms of the responsibilities and rights of both the filmmaker and the subjects of the film.
Madeleine Bair is the program manager at WITNESS, an international organization that provides training and support to people using video in human rights advocacy. She told the International Journalists Network: “The emergence of eyewitness footage in reporting has happened largely without specialized training or best practices for the reporters and news outlets who find themselves using citizen footage.”
One of the issues in determining what is ethical when using eyewitness footage is a lack of information about what can be used. In addition, the nature of social media encourages sharing without regard for the implications of privacy, or in some cases, safety and human rights.
Constitutional attorney Dan Barr told KPHO that in most cases involving public places, privacy laws don’t protect individuals, which means if someone captures images of a person at the beach, or a concert, privacy law is not applicable. However, sharing images of a person or group of people who are situated at a private business, home or doctor’s office could be problematic.
“If you take a photo in a private area where people have a reasonable expectation of privacy, you’re going to run afoul of the privacy laws,” Barr said in the report.
CNN reported that journalist Stephanie Wei had her PGA Tour credentials revoked after live-streaming her account of professional golfers practicing shots from a tour event on Periscope. “Everything just felt so natural, almost as if not live-streaming it would be missing an opportunity to do my job in a more informative way,” she wrote in a blog post. “The response to the streams (from fans) was tremendous and overwhelmingly positive. I thought about the possibilities and how Periscope could be a major game-changer in enhancing media coverage of practice rounds leading up to the tournament days.”
Wei reported her understanding that the Tour had a responsibility to its financial partners in terms of paying for the television rights, however she felt it was time to “adjust to the current, ever-changing media landscape and how people—its customers—consume golf content.”
After noting that she was thrown off the PGA tour and lost her professional credentials, she would have to “live with the consequences” that would impact her “professionally and financially,” Wei added.
While money and sports broadcasting are one element in the mix in the larger ethical landscape of live footage, there are other factors affecting the issue as well. Even geography can play a part. In America, there is a different set of standards and expectations for what might be appropriate to broadcast online than overseas. So when an American is traveling, footage that is taken and broadcast might have human rights implications that are unknown to the person shooting the footage.
In terms of journalism and for documentarians and investigators, videos posted or linked online raise questions about how to apply ethical and safe human rights practices. Minimizing the potential for harm or violent repercussions to any community when filming, editing and posting footage should take paramount consideration. Journalism at a minimum has a responsibility to protect the identity of a victim of a crime so that a person’s privacy isn’t violated by social media. Video subjects, who often don’t even know they’re being filmed, shouldn’t be forced to explain events they otherwise would not have had to, potentially undergoing additional trauma at the cost of a sensational news story.
While technology makes it easy to link to a YouTube video in an online report, article, or documentary film, filmmakers have a responsibility to consider the potential implications of doing so for the individuals and social or community groups being filmed.
Eyewitness footage shouldn’t be used as the sole source of a media report. Eyewitness Media Hub co-founder and lead researcher Pete Brown told MediaShift, citing a Tow Center report on legal and ethical issues of eyewitness footage:“I don’t think news organizations should be reaching the conclusion that eyewitness media can somehow replace professional journalism,” Brown told MediaShift. “It’s an amazing and invaluable addition to the newsgathering process, but audiences still need journalists to unpack and make sense of eyewitness content and to provide vital context about the story.”
In order to help citizens and activists determine when and how to use eyewitness footage, the international human rights advocacy organization WITNESS released ethical guidelines on the issue.
Responsibility to Individuals Filmed
One overriding concept within the realm of ethics in usage of eyewitness footage is simply minimizing harm to the subject of the documentation. Gaining consent from the person or persons being filmed is the easiest way to avoid future ethical problems. If the subjects are aware they are being documented and for what purpose and audience, the creator of the film has met a certain level of ethical responsibility. Once again, the setting of the filming becomes important: If the setting is a public place versus a private home or office, there are far less likely to be problems later on with privacy issues.
Those shooting footage need to consider cultural differences. For example, when filming a protest or rally in the U.S., the identities of the protestors are not usually a secret, so if they’re seen on social media, there would be no potential for additional retribution, where in other countries, protestors could be punished for their activism.
WITNESS guidelines recommend that filmmakers should consult with someone inside the relevant community being filmed in order to determine whether sharing the footage could potentially create any harm.
A film’s creator often weighs benefits to society of documenting a film’s subject because of a perceived advancement of the greater social good. However, the risk of sharing the eyewitness video to create harm to participants is a far greater consideration. Facial and voice blur tools are available on YouTube to hide the identities of individuals in a video if privacy or lack of consent is a potential issue. It is the filmmaker’s responsibility to ensure that identifying information (nametags, license plates, addresses) is not seen on the video.
Responsibility to the Filmer
One ethical issue of eyewitness video is protecting the identity of a filmmaker if that individual has chosen to remain anonymous. Sometimes this choice is made for safety reasons, so the footage is posted under another account or an anonymous account. Anyone using this footage then has a responsibility to respect this desire for anonymity.
Another important issue a filmer faces is the provenance of the footage. News organizations have stumbled before by reporting on footage that turned out to be counterfeit. Reporters should always embed or link to footage from its original source, stating the name or organization of the filmer. They should also describe as much information as possible about the circumstances under which the video was obtained and why its legitimacy is assumed. Copyright issues may come into play and are a separate legal determination.
Responsibility to the Audience
When presenting eyewitness videos to an audience, the content curator has a responsibility to provide a context for the footage, particularly if it is controversial or potentially offensive. Simply placing a piece of video or linking to it in the middle of a sentence without explaining why it is there wouldn’t make any sense. Including background information and history of its placement within the report or social media channel is important. If the footage is graphic or violent, for example, there should be a clear warning preceding it.
Unfortunately, eyewitness videos can sometimes be made to further agendas of hate, fear, rumor and stereotypes. In the ethics guide, WITNESS advises taking steps to reevaluate that the video does not provide a platform for the advancement of hateful beliefs or false rumors.
Everyone has a smartphone and a social media account, so it’s easy to shoot a video and share it. If suddenly the world is going to be full of “citizen journalists” though, we’d all benefit from learning some of the basic tenets of responsible journalism and work to respect the rights and privacy of those being filmed.
Mary McCarthy is Senior Editor of SpliceToday.com and a bestselling author. Find her at marytmccarthy.com.
In March 2016, jurors awarded ex-wrestler Hulk Hogan $140 million in his case against Gawker for posting a video of him having sex with the wife of his then-best-friend Todd Clem. In a smackdown between privacy and free speech, the former seems to have won. As one of the jurors told ABC News, “[Hogan is] still a human being just like everyone else, no matter how many people know his name and his face.”
The same month saw two other celebrity privacy verdicts with a similar sentiment. Fox Sports reporter Erin Andrews won $55 million in a lawsuit against a stalker who filmed a nude video of her in a hotel room without her knowledge. And Ryan Collins, who hacked into 50 or more celebrities’ cloud services and obtained nude photos of them that were later leaked, faces up to five years in prison.
What do these cases tell us about the state of internet privacy today? Have these scandals taught us something? Has anything changed?
Anything can go public. So what?
Today, celebrities know that if they’re doing something unethical, chances are the public will find out. The internet’s existence alone means that information can travel around the world faster than gossip in a school cafeteria.
But it’s not just the internet; it’s technology as a whole. Social media accounts (with their vulnerabilities to hacking), smartphones with cameras, and streaming video all make for instant, personal access to people who were formerly protected by managers and the limitations of physical film. The barrier to access is much lower now—so low, it’s easy to demolish said barrier using only an iPhone and excessive booze. Just ask John Galliano, the fashion designer whose career at Dior tanked after a video surfaced of him drunkenly making anti-Semitic remarks.
Public figures know a single remark or faux pas can and will be front-page news, and yet that doesn’t stop them. “We need to resign from this company immediately…At any moment, the police arrive, and we end up in the newspapers,” wrote Jurgen Mossack, founder of the law firm at the heart of the Panama Papers info leak, in a cautionary email to other top staff. The clincher? Mossack sent that email in 2014. Despite freaking out about it two years ahead of time, he failed to prevent this fear from coming true.
The lesson here: We’ve learned everything and nothing. Knowing that something shameful could become headline news hasn’t stopped high-profile people from doing those things. Whether or not Hulk Hogan knew he was being taped having sex with his friend’s wife, he still slept with her.
With entitled or deluded impunity, society’s elite think they’re immune from the consequences of their actions—and up to a point, they’re right. A quick swing by rehab or half-hearted apology scripted by a publicist—like Johnny Depp and Amber Heard’s recent bizarre video after smuggling their dogs into Australia—is often all the public needs in order to move on. Terry Richardson, Woody Allen, Chris Brown, and R. Kelly, each with well-documented instances of sexual harassment, molestation, abuse, and/or rape, continue to enjoy professional careers, fame and fortune. Without any accountability, why should celebrities care that their private misdeeds could become public online?
The privacy scandal as PR tool
One thing has changed: Celebrities have quickly learned to use privacy scandals to their advantage. What should perhaps serve as a cautionary tale, an incentive to clean up one’s act, has instead become a PR tool for the famous to shrewdly wield.
Exhibit A: Kim Kardashian’s “accidentally” leaked sex tape that propelled her to fame. The highly effective “misstep” that got her national recognition and launched her entire career has been copied over and over by other celebs seeking to raise their profiles or shed a squeaky-clean Disney image. Obviously, sometimes celebrity photo or video leaks are crimes; hackers shouldn’t get a free pass. But when the leak happens to emphasize how sexy or well endowed someone is (ahem, Justin Bieber) rather than them committing a crime or other socially unacceptable behavior, one wonders if the “leaked on purpose” rumors are true.
Beyond just boosting their sex appeal, celebs are using internet privacy scandals to incite the public on other villains: paparazzi and the media. After actress Kristen Bell had her first child, she and her husband started a campaign to ban websites and magazines from publishing photos of celebrities’ children, resulting in Entertainment Tonight, People and Just Jared all agreeing not to. But at the same time, other celebs court the paparazzi, even alerting the photographers to their whereabouts in order to get some tabloid coverage.
In the recent Hulk Hogan privacy scandal, Gawker Media—already a love-to-hate site—became a scapegoat and public example. As juror Shane O’Neil told ABC News, “Gawker made it clear to everyone…that they were all about crossing the line.” ABC added that the jurors were hoping “to send a message” with their verdict. O’Neil continued: “It just wasn’t about punishment of these individuals and Gawker. You had to do it enough where it makes an example in society and other media organizations.” Suddenly, the site that millions eagerly read every day for celeb gossip has gone too far, free speech be damned. It’s hackers, photographers and smut-peddlers who have gone too far, not us!
We’re conflicted about privacy and fame
I daresay this reflects America’s past Puritan ideals and current conflicted relationship with privacy, sex and fame. We want to take nude selfies and label certain people “sluts.” We want to see Jennifer Lawrence naked while blaming hackers and photographers for it, not our own curiosity. We shun celebs who are too perfect (like Anne Hathaway), but when someone actually breaks the law (say, Vanessa Hudgens carving her name into a rock in Sedona), suddenly it’s OK to call her a “stupid a$$ bitch” and a moron. We’re fallible, but celebrities should be perfect: sexy and accessible and flawed—but only a little bit, and only in ways we relate to.
Ultimately, we see celebrities as our more-successful stand-ins, so we accept a certain amount of imperfection. If someone famous like Hulk Hogan can’t have the freedom to have an affair and tape it, then that means we can’t cheat on our spouse, and what is the world coming to? We draw the line at pedophilia (Subway Jared), double-digit rapes (Bill Cosby), and failing to be sufficiently patriotic (Ariana Grande and Donutgate)…but not much else. Because celebs, and by extension the American public, should be able to have our Snapchat cake and eat it too.
We give away more and more of our privacy in the name of convenience and the latest technology, yet we’re surprised when someone steals our banking information. We want ever more intimate access to celebrities, but shame on the media for giving it to us. We want to support the whistleblowers and Edward Snowdens of the world…as long as they expose pre-established villains, but not anyone we relate to.
By all means, hold hackers, intrusive paparazzi, and tabloids accountable for invading celebrities’ privacy. But famous or not, we all have responsibilities too: Start being more realistic about the illusion of digital privacy or stop being so ashamed of our sexual expression and offshore bank accounts.
Holly Richmond is a Portland writer who follows celeb gossip WAY too closely. Learn more at hollyrichmond.com.
The San Bernardino attack that resulted in the deaths of 14 people last December continues to evolve into the polarizing yet familiar battle over the balance between privacy and national security. For those who have lost track of how it all started, the story began when the FBI was unable to unlock an iPhone belonging to one of the attackers, Syed Rizwan Farook, and approached Apple for assistance. Drama ensued as Apple refused to help the FBI break into the phone, believing that the methodology it was asked to utilize was unwarranted and threatening to public security. In what many have argued is an unethical, unprecedented request, the FBI ordered Apple to create software that would disable privacy settings used in select iPhones models. In addition to existing disputes over the acceptable extent of access to private information, the order gave rise to a new question: Does the FBI have the right to demand security backdoors that could compromise the safety of uninvolved civilians?
The trouble began soon after the FBI found that it could not unlock Syed’s phone, which was locked with a four-digit code set to erase the phone’s contents after ten incorrect password attempts. The task was further complicated by a setting that increased time increments between failed password trials, a particularly frustrating problem in crimes when time is of the essence. In fact, Apple’s iPhone encryption software was so advanced that the company itself claimed it did not possess the technology needed to unlock it. Frustrated with Apple’s refusal to comply with its requests, the FBI asked Magistrate Sheri Pym to issue a court order demanding that Apple create a new operating system to allow it to bypass security measures.
The order was unique both because it asked for nonexistent software and because it requested a security ‘backdoor’ that could be used to unlock myriad devices. So was it ethical, not to mention legal, for the FBI to ask for software that had the potential to override broadly-applicably security measures? According to Apple, the answer is a big, fat, thespian no. Apple not only refused to comply but also published an open letter to the public, advising people of the ‘chilling’ implications of a security backdoor, writing that, “this demand would undermine the very freedoms and liberty our government is meant to protect.” Apple warned that the technology could be detrimental if misused, stating: “In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession … while the government may argue that its use would be limited to this case, there is no way to guarantee such control.” The letter went on to outline several alarming scenarios that could result from giving the government access to this technology. Among them were the right to ask for software that intercepts texts or photos, health records, financial data and locations.
Though the letter was a bit artful, it raised important questions that deserve careful consideration. For one, the request for nonexistent software could set a legal precedent for permitting additional nonstandard, privacy-compromising demands. Apple’s fear stemmed in part from the approach the FBI took to seeking out iPhone contents. Rather than issuing a standard subpoena for information found on one device, the government requested a court order under the All Writs Act, which allows federal courts to issue all necessary or appropriate legal writs (i.e., court orders) compelling citizens to undertake certain actions as long as it is necessary and appropriate. The Act is a component of the Judiciary Act of 1789, and its creators could not have possibly predicted cell phones, let alone the links between individual phone software and security of technologies belonging to the greater public. Because the Act is so broad, it could, in theory, be applied to more extensive requests for technology that would jeopardize our privacy.
Whether major fears about abuses of power are symptomatic of public paranoia or forward-thinking dedications to ensuring public security is debatable. The government’s stance on the issue is not. Soon after the open letter was published, the FBI filed a motion to compel Apple to comply with the court order and accused the company of misrepresenting facts for marketing purposes. Government prosecutors wrote: “Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this Court’s Order of February 16, 2016, Apple has responded by publicly repudiating that order … The Order does not, as Apple’s public statement alleges, require Apple to create or provide a ‘back door’ to every iPhone; it does not provide ‘hackers and criminals’ access to iPhones … It does not give the government ‘the power to reach into anyone’s device without a warrant or court authorization …” The motion also goes on to imply that Apple misled the public about the dangers of the All Writs Act, claiming that Apple previously complied with the Act, and use of the law for such purposes was not unprecedented.
While Apple and the FBI clearly stand on opposite sides of the argument, the public’s opinions on whether the government is dangerously overstepping boundaries are mixed. Based on a March phone poll of over 1,000 individuals, CBS revealed that 50 percent of those polled thought that Apple should unlock the iPhone, and 45 percent thought it should refute the order. Despite the varied results, eight in 10 respondents still believed that it was at least somewhat likely a decision to unlock the phone could set a legal precedent for mandates to unlock additional devices in the future. In other words, a belief that the government will continue to push privacy boundaries are widespread
Luckily for the FBI, it is unlikely that the bureau will be forced to defend itself on a public stage. Nor will Apple be lucky enough to testify in court, acting as a stalwart battling the government to protect collective security. What could have set the stage for a Hollywood movie has begun to devolve into a background narrative. After asking for a delay on its court date with Apple, the FBI fully retracted its demands. Instead of fighting the tech giant, it secured the services of professional hackers who were able to find and expose flaws in the iPhone’s security system, allowing the government to unlock the phone without clearing its contents.
Not only has the dramatic storyline come to an abrupt halt, the ball is back in the FBI’s court. Now that it possesses information about Apple’s security flaws, it has the opportunity to minimize accusations about unethical intentions to infiltrate additional devices. If the FBI chooses to provide Apple with details about its operating system failings, the bureau may qualm some public suspicions, but it will also risk losing valuable information that could be utilized for future searches. The path it chooses to take will likely be determined by the White House in the coming weeks, but inevitably, uncertainties over its intentions will remain intact.
Paulina Haselhorst was a writer and editor for AnswersMedia and the director of content for Scholarships.com. She received her MA in history from Loyola University Chicago and a BA from the University of Illinois at Urbana-Champaign. You can contact Paulina at PaulinaHaselhorst@gmail.com.